Discrimination: Adverse inferences and proof – a change of approach
Cecily Donoghue, employment solicitor specialist at the Gregg Latchams’ Bristol office reports on the recent Employment Appeal Tribunal (EAT) decision which has found there is no burden on Claimants to prove the facts of their discrimination complaint. In an acknowledged change of approach, the EAT has declared that Tribunal’s should “consider all the evidence, from all sources, at the end of the hearing”.
The Claimant was a black African born in Nigeria working as a postman for Royal Mail. During his employment he made 33 applications for IT-related jobs within Royal Mail. He was unsuccessful for each position. Royal Mail claimed that this was due to the poor quality of his generic applications, a failure to pass initial skills testing, and inability to demonstrate the necessary skills and experience for the role.
The Claimant felt that he was unsuccessful due to his race and brought a number of claims for discrimination, harassment and victimisation. The Employment Tribunal (ET) found in his favour some of the victimisation and harassment allegations but dismissed his remaining claims – including his claim for direct discrimination following the rejection of his job applications. The Tribunal concluded that there was no evidence to suggest that the information about the town and country of his birth had been used or taken into account at any stage of the application process. The Claimant appealed against the dismissal of this particular claim and this is the focus of the EAT decision.
The burden of proof:
S136(2) and (3) of the Equality Act 2010 set out the test for the burden of proof in discrimination cases and states:
- (2) If there are facts from which the court or tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
- (3) But subsection (2) does not apply if A shows that A did not contravene the provision.
The previous (and commonly accepted) position was that firstly, the Claimant had to show facts from which a tribunal could decide or infer that the employer had discriminated against the individual. Once they had done so, the burden of proof shifted to the Respondent to show that there had been no discriminatory treatment.
Employment Tribunal decision:
The initial Tribunal found that it was for the Claimant to prove facts, from which the Tribunal could conclude that there had been discrimination. It found that the Claimant had not proved facts from which they could conclude that the Respondent’s recruiters or hiring managers knew of his protected characteristics (his race) or that these were factors relevant to or influenced their decision not to shortlist, interview or recruit the Claimant.
Employment Appeal Tribunal decision
The EAT considered the wording of s136 very carefully and concluded that s136(2) does not put any burden on the Claimant. It was very critical of the earlier Tribunal’s reasoning and instead interpreted s136 as requiring a Tribunal to consider “all the evidence, from all sources, at the end of the hearing…” and concluded that the ET had failed in a number of areas, and that they did not understand the effect of section 136.
The EAT actively acknowledged that this was not the way in which the burden of proof has been understood to date, but identified that these cases referred to the previous legislation that had been in place before the Equality Act came into force. It also recognised that this interpretation goes further than the original EU Directive from which the Equality Act is derived. However the EAT justified this on the basis that the Directive permits member states to introduce rules which are more favourable to plaintiffs.
This is a significant change from the previous position on the burden of proof and arguably lowers the threshold for Claimants to pass when bringing a direct discrimination claim. The case has been remitted to a new Tribunal for consideration and it will be interesting to see how this decision is followed in future claims.
If your business is subject to a discrimination claim or if you would like to discuss the implications of this decision further, please don’t hesitate to contact Cecily Donoghue or Nick Jones in our employment team for advice on how to respond to the claim.